The action tending to have recognized this deemed unwritten clause of article L. 145-15 of the Commercial Code is imprescriptible.
Civil. 3rd. November 19, 2020, n°19-20.405. – Published in the bulletin – Unpublished
In an unpublished judgment of the third civil chamber dated November 19, 2020, the Court of Cassation specified the methods of application in time of the provisions of article L. 145-15 of the Commercial Code relating to clauses deemed not to written.
This article, amended by the Pinel law of June 18, 2014, provides that clauses contrary to the public order provisions of the status of commercial leases are deemed to be unwritten. Previously, the sanction applicable in such a situation was that of nullity.
The Court of Cassation recalls, in accordance with its constant case law, all the interest of the change of sanction operated by the Pinel law.
Indeed, while the action relating to the nullity of a clause of the current commercial lease is prescribed within two years following the signing of the said lease (application of the biennial prescription of article L. 145-60 commerce ), the action now seeking recognition of this deemed unwritten clause of article L. 145-15 of the Commercial Code is imprescriptible.
Above all, the present case concerned a commercial lease concluded prior to the entry into force of the Pinel law but whose execution continued under the aegis of the new law. The Court of Cassation thus accepts that the provisions resulting from the Pinel law relating to clauses deemed unwritten can be applied to a contract that is prior to and in progress at the time of its entry into force.
clause of a commercial lease deemed unwritten , without any limitation period being able to prevent it and even if the contract has concluded prior to the entry into force of the Pinel law.
This solution would have the consequence that the lessees would be admissible to challenge the application of the clauses of a commercial lease contrary to public order, at any time during the application of the lease.
